FOURTH SECTION
CASE OF DELVINA
v. ALBANIA
(Application no.
49106/06)
JUDGMENT
(Just satisfaction)
STRASBOURG
May
2013
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Delvina v. Albania,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 30 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
49106/06) against the Republic of Albania lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by three Albanian nationals, Mr Sherif Delvina,
Mr Ahmet Delvina and Ms Fatime Delvina (“the applicants”), on 23 November
2006.
In a judgment delivered on 15 February 2011 (“the
principal judgment”), the Court held that there had been a violation of Article
6 § 1 and 13 as well as of Article 1 of Protocol No. 1 to the Convention on
account of the Albanian authorities’ failure to enforce a final Supreme Court’s
decision of 6 June 2006 which had awarded compensation to the applicants in
lieu of the restitution of property.
Under Article 41 of the Convention the applicants
sought various sums by way of just satisfaction.
Since the question of the application of Article
41 of the Convention was not ready for decision, the Court reserved it and
invited the Government and the applicants to submit their written observations
on that issue.
On 26 May 2011 the applicants submitted their
claims in respect of pecuniary damage and legal costs and expenses.
On 22 June 2011, the principal judgment having
become final on 8 June 2011 in accordance with Article 44 § 2 of the
Convention, the Court invited the parties to submit written observations
concerning just satisfaction by 8 September 2011.
On 5 and 14 September 2011 the applicants
reiterated their previously submitted claims on just satisfaction.
On 9 September and 9 November 2011 the Court
extended the deadline for the submission of the Governments’ written observations
on just satisfaction to 10 November and 7 December 2011, respectively.
The Government did not submit written
observations.
THE LAW
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. The Government’s request to strike out the
application under Article 37 of the Convention
On 10 November 2011 the Government submitted a
unilateral declaration requesting the Court to strike the remainder of the
application out of its list of cases. They proposed to offer the applicants
in-kind compensation by awarding an equivalent plot of land, whose value would
be determined on the basis of the property prices in 2006, when the final
domestic court decision was delivered.
In their letter of 6 December 2011 the applicants
requested the Court to reject the Government’s unilateral declaration.
Although the Court welcomes in principle the Government’s
unilateral declaration in which they propose to award in-kind compensation to
the applicants, the Court, having studied it carefully, is unable to accept it
in the present case, because it lacks clarity
and certainty. It does not specify the precise physical location of the plot of
land to be awarded to the applicants, its value or its legal status. The
Government’s undertakings cannot suffice to dispel those deficiencies or to
provide comfort as to the duration of the in-kind compensation process. The
Court further notes that this form of compensation has been found not to be an
effective remedy (see, for example, Manushaqe Puto and Others v. Albania, nos. 604/07, 43628/07, 46684/07 and 34770/09, § 75, 31 July 2012, and Çaush Driza v. Albania, no. 10810/05, §§ 78-83, 15 March 2011). Moreover, in
its judgment in the case of Vrioni and Others v. Albania (just
satisfaction), cited above, the
Court has already rejected the Government’s argument that the reference price for
the expropriated property should correspond to the market value at the time of
the domestic authorities’ decisions (see paragraphs 36-37 of the said
judgment).
. Having regard to the above
considerations, the Court rejects the Government’s unilateral declaration and
their request to strike the remainder of the application out of its list of
cases.
B. The parties’ submissions as regards just
satisfaction
1. Damage
Even though the
applicants submitted that property prices had increased in Tirana as regards
their plot of land, they were prepared to rely on this Court’s judgment
in the case of Vrioni and Others v. Albania (just satisfaction) (nos.
35720/04 and 42832/06, 7 December 2010) and
the authorities’ property valuation maps of 2008 in respect of Tirana in the
calculation of pecuniary damage. They consequently sought 2,072,000 euros
(“EUR”) in respect of pecuniary damage (1,600 sq. m x 1,295 EUR/sq. m), no
claim having been made as regards non-pecuniary damage.
. The Government were requested to but
made no written observations in response to the applicants’ claims for
just satisfaction.
The Court reiterates the principles and the
method of calculation laid down in its Vrioni and Others v. Albania (just
satisfaction), cited above, judgment. It sees no reason to depart from those
findings. It notes that, on the basis of the valuation maps in its possession, the
reference price per square metre for the area in which the applicants’ property
was located has been valued at 180,000 Albanian leks (EUR 1,264). The
applicants indeed relied on the reference price contained in the valuation
maps. The Government did not make written observations and they did not dispute
this. Accordingly, the Court awards the applicants EUR 2,022,400 in pecuniary
damage as regards their plot of land which measures 1,600 sq. m.
In the absence of a non-pecuniary damage claim
made by the applicants, the Court makes no award under this head.
2. Costs and expenses
. The applicants requested EUR 9,300
in respect of costs and expenses. The Government made no written observations
in response.
According to the Court’s case-law, an applicant
is entitled to reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Gjyli v. Albania, no. 32907/07, § 72, 29
September 2009). To this end, Rule 60 §§ 2 and 3 of the Rules of Court
stipulates that applicants must enclose with their claims for just satisfaction
“any relevant supporting documents”, failing which the Court “may reject the
claims in whole or in part”.
In the present case, regard being had to the
supporting documents submitted by the applicants, the Court decides to award
EUR 3,500 as regards costs and expenses incurred before the domestic
proceedings and the Strasbourg proceedings.
3. Default interest
The Court considers it appropriate that the default
interest rate should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the Government’s unilateral
declaration and their request to strike the application, as regards the issue
of just satisfaction, out of its list of cases;
2. Holds
(a) that the respondent State is to pay the
applicants, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into the currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 2,022,400 (two million twenty two thousand
four hundred euros), plus any tax that may be chargeable,
in respect of pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros),
plus any tax that may be chargeable, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
3. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 21 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Ineta
Ziemele
Deputy Registrar President
